The Business of Photography

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The Business of Photography

Understanding Copyright [2007]

The following advice is specific to Australia. All Western countries subscribe to copyright legislation but there can be notable differences in the detail. This article was first published in October 2007. 

Why Photographers Should Understand Copyright

Every time you press the shutter, copyright in a photograph is created.

The question you need to ask is, who owns the copyright. Is it you?

If you own the copyright in a photograph, you can give people permission to use it, either freely or for a fee. Similarly, you can prevent people from using it, or if people have already used it or are currently using it without your permission, you can take legal action to stop them using your work and possibly be compensated financially as well.

Ownership of copyright can prevent a client selling your photos to someone else, or a family from making copies of your portraits to give to friends.
Copyright can also stop you from using or copying your own photograph if you don't own it yourself. Imagine taking a great photograph with particular look and style, but not being able to include it in your portfolio or to take a similar photograph for another client because you don't own the copyright in your own work.

As a photographer you need to understand at the very least who owns the copyright and what paperwork is required (if any) to ensure you do.

Who Owns Copyright In A Photograph?

The general rule (as outlined in the Australian Copyright Act) is that copyright in a photograph is automatically owned by the person who took the photo. Even if you were using someone else's camera, the fact that you pressed the shutter button means you own the copyright. Legal people talk about being the ‘first owner' of the copyright, indicating that copyright can be sold or transferred to another owner at a later time.

This automatic rule applies to both amateur and professional photographers, but when you are taking photographs professionally, there are three important exceptions to this rule.

Exception 1: The first exception is especially important for wedding and portrait photographers. Copyright is generally owned by our clients when we take photos for ‘private or domestic purposes'. Most family portraiture and wedding photography falls clearly into this category, whereas broadly speaking advertising and commercial photography probably does not.

Note, it is the use of the photography, not the type of photographer you are. So, if you're a wedding photographer, but you shoot an architectural job for an architect, you would own the copyright because it is unlikely to be for private or domestic purposes. On the other hand, an architectural photographer taking photos of a home for a private individual may not automatically have the copyright (the photos being for a ‘private or domestic' purpose). I imagine having photos taken in order to sell the property would not be considered a private purpose, but it gets tricky. Rather than wondering if copyright is yours automatically or not, it's easier to have an agreement between you and your clients outlining exactly who owns copyright. This will be discussed later.

The idea behind this exception is to protect the mums and dads of Australia from the ‘more commercially powerful' professional photographers. In comparison, when a photographer deals with another business, the legislation takes the view that the parties are on a more even footing and so, in the absence of an agreement to the contrary, copyright is automatically owned by the photographer.

Exception 2: The copyright in photographs taken by employees is owned by the employer. This applies to employees in the conventional sense of the word - this law doesn't apply to freelance magazine photographers, for instance.

There are special rules when the employer is a newspaper or magazine publisher: the employer (publisher) owns the copyright except for two situations, the reproduction of photos in books and photocopying, in which case the photographer owns the copyright. This law enables photographers to collect a body of their work and publish it in book form, but with electronic publications becoming increasingly viable, it's unclear how valuable this exception for employee photographers will be.

Most readers will be either fully or partially self-employed. If working through a family company or trust, then the family company or trust will own the copyright and this could be a trap were the structure to be closed down (a written agreement could allow the copyright to be owned by the photographer, however.)

Exception 3: When a government department (Commonwealth, State and Territory, but not a local council) commissions photography, it owns the copyright.

These rules and exceptions apply from 30 July 1998. Photographs taken prior to this date are subject to different copyright rules. More importantly, these rules and exceptions don't operate if there is an agreement between the photographer and the client that deals with the copyright differently. A written agreement can override the legislation.

The Importance of Paperwork For Copyright

Every time we take a photograph professionally, we have a choice about how copyright will operate.

If we do nothing, then the legislation (as outlined above) dictates who owns the copyright.

Alternatively, we can have an agreement with our client that sets out who owns the copyright, in which case the Copyright Act does not apply.
No matter what type of photography you are shooting, or for whom you are taking the photos, good professional practice requires us to prepare an agreement or a contract that sets out (among many other issues), the fact that we own the copyright.

This agreement must be signed or agreed to prior to taking the photographs. Why? If there is no agreement in place when you take the photographs, then the Copyright Act legislation, with its exceptions, determines who owns the copyright.

To ask a client to hand over copyright to you after you have taken the photos is fraught with legal complexities. Yes, it can be done with a formal contract, but if the client agrees with your ‘terms and conditions' after the shoot is completed, this is too late. The copyright is already owned, either by you or the client in accordance with the Copyright Act.

Getting A Signature

When we think about business agreements, we often think they are too hard to organise because we have to ask our clients to sign a piece of paper. It's hard enough getting clients to agree to the job, let alone deal with issues like copyright.

While there is no doubt a signed agreement is the best form of contract, as recommended by the Australian Copyright Council, our clients can agree to our terms and conditions - including our ownership of copyright - simply by doing business with us. They don't necessarily have to sign an official agreement.

When a client approaches us, if we provide them with a document outlining our terms and conditions and then they proceed to book us, then effectively they have accepted our terms and conditions whether they sign an agreement or not.

This can be useful for commercial photographers when providing an estimate or a quote to a client. By attaching their terms and conditions, the estimate or quote can also dictate who owns the copyright.

Of course, this isn't such an issue for most commercial photographers because, in the absence of an agreement or terms and conditions, they would own the copyright anyway. Or would they?

Very often our business clients send us a purchase order for our photography and attached to this (or maybe printed on the back) can be their own terms and conditions. Their terms may state that they will own the copyright. What happens?

The client's terms and conditions will take precedence because they were provided after the photographer provided his.

On the other hand, if after receiving the client's terms and conditions, the photographer counteracted by sending back an acceptance letter with his own terms and conditions stated again (including his ownership of copyright), then the copyright would be his.

It is the most recent terms and conditions that stand and often businesses large and small send out their paperwork with their terms and conditions attached, but not really thinking what they contain and how it affects legal issues like copyright. Even worse, when they receive terms and conditions from other parties, they don't read them either.

Do you always read the terms and conditions provided by your clients?

Wedding and portrait photographers should also provide terms and conditions to their clients. They can provide them as part of their price lists or on a booking form. While it is unlikely a client will return a booking form with their own terms and conditions, it is quite common for them to have read the conditions and crossed out ones they don't agree with. If you continue with the shoot, then the crossed out sections no longer apply, so be sure your client hasn't deleted the paragraph that gives you copyright.

Wedding and portrait photographers also need to deal with consumer protection laws and while generally these laws don't override copyright law, you need to be sure that your paperwork is very clear in what it is stating. Don't hide the fact you own the copyright in the smallest type at the bottom of the page - make sure you are up front about what happens with copyright and what this means to your client.

While you can obtain copyright from clients without their signature, by far the best way is to have them sign something. It doesn't have to be a separate agreement that only deals with copyright, but can be an order form that lists out many different aspects of the shoot, portrait session or wedding, including copyright. When they agree to hire you to do the work, they are agreeing to your copyright requirements.

Many people don't like being asked to ‘sign' a ‘contract' because these words can have negative legal connotations, so ask your clients to ‘okay' an ‘order form' or to ‘put their autograph' on a ‘confirmation letter'. It comes to the same thing.

Licencing: The Alternative to Copyright?

Owning copyright is the ultimate. Having a licence to a photograph can be almost as good and can be a useful alternative in a number of different situations.

The copyright owner can sell the copyright to someone else, in which case they have no further rights to the image. Alternatively, the copyright owner can retain copyright, but give someone else a ‘licence' to use the photo.

The licence can be as wide or as narrow as you like. You can licence someone to use and sell the photo without any restrictions, or you can licence someone else to use the photo for one year, in New Zealand and in magazines.

When it comes to upmarket wedding and portrait photographers, you're unlikely to give your clients a licence because by retaining all the rights to the photography, they have to buy further prints from you. However, the budget end of the market may offer photographs to their clients including copyright. This doesn't make sense - why not retain the copyright and include an unrestricted licence for your clients? Or give them a licence to print photos for friends and family, but not allow them to sell the photos to magazines or books.

By thinking a little cleverly about copyright and licencing, you can often create an arrangment that suits your clients, but allows you to retain copyright.

For instance, many advertising agencies and large corporations have terms and conditions that state they will own the copyright. Often, their staff don't necessarily understand why, they are just instructed to hand out the terms and conditions written by their lawyers. What these agencies and corporations want to protect is their right to use the photograph. Yes, copyright can be a serious issue for some, but most simply want the right to use the photographs freely and owning copyright gives them this freedom.

Assuming you're being properly paid for the job, an alternative to handing over the copyright is to give your client an unrestricted licence to use the photos. This will probably give them all the freedom they need, but lets you retain the copyright - and the right to show the work in your portfolio or do similar photos for other clients. Of course, for this approach to work you need to have a good relationship with your client and probably some time to explain why copyright is necessary for you and a licence is sufficient for them.

How Long Does Copyright Last?

Copyright doesn't last forever and this is why you can see copies of famous paintings like the Mona Lisa being used freely. In Australia, the rules were changed from 1 January 2005 and this is a key date.

For photographs that were still ‘in copyright' at 1 January 2005 (under the old rules), and for photos taken from 1 January 2005 onwards, copyright lasts for 70 years after the photographer dies.

Prior to this, copyright lasted for only 50 years and so any photographs taken prior to this date are out of copyright.

There are special rules for photographers where the photographer is unknown and for government departments (whose copyright lasts for 50 years from date of first publication).

The Right To Take Photos

Generally speaking, there are no restrictions on photography. You can photograph most people, buildings and events, certainly when they can be seen from a public place. In Australia, there is nothing illegal in the act of taking a photo per se.

Some locations may impose restrictions as a condition of entry. Sometimes these restrictions only apply to professional photography, while personal photography is still permitted. Professionals have restrictions imposed on them in Commonwealth reserves (such as Kakadu National Park, Uluru-Kata Tjuta National Park, Booderee National Park, Australian National Botanic Gardens, Christmas Island National Park, Pulu Keeling National Park, Norfolk Island National Park and Commonwealth Marine Parks and Reserves) and around Sydney Harbour (including Luna Park, the Rocks and Circular Quay, Darling Harbour, Woolloomoolloo, Pyrmont, White Bay, Rozelle Bay and the Australian Technology Park). This includes wedding and portrait, not just advertising and editorial photography and the issue is highly technical and controversial. However, it has nothing to do with copyright - if you're not allowed to take photographs in the first place, there is no copyright. Or, as in the case of the Commonwealth Reserves, if you do create copyright, then legislation restricts any commercial use of your copyright.

Restrictions attached to access are applied by private businesses as well. For instance, when you attend a concert or stage performance, one of the conditions of entry may be that you do not take photographs. Of course, we still see lots of people using their mobile phones to take snaps and technically they have broken their contract. Whether the organiser can ask them to leave, confiscate their camera or even delete the images is a matter of law outside the scope of this article. The point to understand is that restrictions can be imposed on you when you enter private land or property. Essentially you have a choice - enter the private property on these conditions (e.g. you can't take photos), or don't enter it at all (and you still won't be able to take photos). It has nothing to do with copyright.

If you are allowed to take photos at the concert, can you use your photos of the performer afterwards? For personal purposes there are no restrictions - after all, you own the copyright so you can print copies and give them to friends. Similarly, as the copyright owner you could sell the photos to a magazine or an advertising agency and there is nothing illegal so far.

If the magazine then published the photograph of the performer, this is still perfectly legal (you don't have to get permission from the performer), as long as the photograph doesn't denigrate the performer. So, a standard photo of a performer in full swing is fine, whereas a photo showing the performer looking drunk or topless may be trouble for the magazine. Is it trouble for the photographer? In theory, no, but in practice, maybe. The performer may try to sue both the photographer and the magazine for defamation or loss of reputation. As a general rule, editorial use of photographs are unlikely to cause any trouble, and even if they do cause trouble, it's not a matter of copyright.

Advertising and commercial usage is different. If an advertising agency were to use the photo of the performer to promote a product or service, and the performer had not separately granted permission for the agency to do so, then the performer could take legal action against the agency (or more probably, the agency's client), requesting they cease using the image and possibly sue for damages. The reason has nothing to do with copyright, rather the performer didn't give the agency permission to associate her reputation with the client's product or service.

Most advertising agencies and stock libraries are very aware of these issues. This is why stock libraries ask their photographers to obtain model releases from people who are recognised in their photos, allowing them to licence the photos for advertising and editorial purposes without having to worry about the subject's permission. This applies to any member of the public, not just famous people.

Architects (or possibly their clients) own copyright in their buildings, but there is a specific exemption in the Copyright Act that allows buildings to be photographed without permisssion. You are not breaching the architect's copyright, but you may be trespassing if the owner of the building and surrounding land doesn't give you permission to enter the property. However, photographing the building from public land is acceptable.
Recently I was asked to photograph the Sydney Opera House. Permission to access the land around the Opera House was declined (due to sponsorship arrangements), but I was told they could not stop me from taking and using photos of the Opera House from the Botanical Gardens, even though it was for advertising purposes. However, I imagine that if my photographs were used in such a way that implied that the Opera House endorsed the product being advertised, action would be taken. However, that is a matter of ‘passing off', not copyright.

Many times security people will tell you you're not allowed to take photographs because of copyright issues. Normally they are wrong, but they may still have the right to stop you from taking photos.

Unpaid Fees

What happens when a family portrait photographer doesn't get paid?

Assuming there was no contract and the family owns the copyright, will the copyright revert to the photographer if the family doesn't pay? The answer is no. Copyright is independent of the commercial transaction.

If your client asks you to take a family portrait or shoot their wedding, there is no contract assigning the copyright to you, and then doesn't pay, they still own the copyright. They can still sell your work to other people, make copies of the images for friends and you can't stop them. All you can do is sue them for payment under normal contractual lines.

If you don't have a written contract with your clients and they don't pay you, you only have yourself to blame if they end up with the copyright.
If you have the copyright assigned to you at the very beginning, then if they don't pay at least you can control what happens to the photos.
If the agreement is for the copyright to end up with the client (as may reluctantly be the case when shooting for an advertising agency or a large corporate client), it is easy enough to create a contract that says you own the copyright when the photos are taken, but it passes to the client upon payment of your fee in full. In this way you are protected commercially.

Selling A Print - Who Owns The Copyright?

When you sell a print to a client, whether a family portrait, a photograph of a client's building, or landscape as fine art, the copyright remains with the owner. It doesn't automatically get transferred with the print.

The print itself does not contain the copyright. When you sell the print, you can also sell the copyright if you wish, but really this is a sepearate transaction, and an unusual one at that.

When you give clients proof prints or even digital files, ownership or possession of them does not give them the right to use them because you still own the copyright. This is the purpose of copyright - to allow you to distribute and show your work without giving other people unfettered rights to use them for their own purposes.

What Happens To Copyright Overseas?

Australia and most other countries we are likely to deal with are all party to a number of international copyright agreements. As Australian's, we would receive copyright protection in these countries the same as their residents. Copyright protection can vary from country to country, but the differences are relatively minor.

While most countries are ‘members' of the international copyright community, this is not to say that everyone in their countries is the same. Some places pay scant regard to copyright and so you should consider your options before dealing with them. Sometimes a big licence up front is a good solution.

Photos Taken Prior to 30 July 1998

This newsletter has dealt with copyright as it applies to photographs being taken today and in the future.

However, in Australia photographs taken prior to 30 July 1998 are subject to different copyright laws as follows.

If the photo was taken between 1 May 1969 and 29 July 1998, then in the abscence of an agreement to the contrary, the copyright is owned by the person who commissioned the photography (and whether or not they paid for it!).

For photos taken prior to 1 May 1969, the person who paid for the photographs is taken to own the copyright unless there was an agreement to the contrary.

Moral Rights

Moral rights are completely separate from copyright. Simply stated, moral rights impose obligations on people who use our photographs.

The rights include being attributed as the creator of your photographs, being able to take action if your photographs are falsely attributed, or if your work is distorted or treated in a way that could adversely affect your repuation.

We will cover moral rights in more detail in a future issue.

Copyright Infringment

Copyright is ‘infringed' when someone uses your photo without your permission (unless copyright has expired). Copyright can also be infringed when they use just a part of your photograph.

If someone makes a copy of a family portrait without your permission, then they have infringed your copyright and you are entitled to ask for payment and can take legal action against them seeking damages. Most copyright actions are settled out of court. Many infringements are difficult to police or enforce, but often a lawyer's letter is enough to stop the infringement, if not obtain payment.

An exception to infringement is when your photograph is used by a critic, a reviewer or a student, and libraries, educational institutions and government can also be excepted in certain situations.

Further Information

The Australian Copyright Council publishes a number of information sheets with some great information on copyright. Visit The Council also has a help line and can assist you with queries about copyright.

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